In re Claim of Villegas, 020521 COWC, 4-889-298-002

Docket Nº:W.C. 4-889-298-002
Case Date:February 05, 2021
TRAVELERS INDEMNITY CO., Insurer, Respondents.
W.C. No. 4-889-298-002
Colorado Workers Compensation
Industrial Claim Appeals Office
February 5, 2021
          CHRIS FORSYTH LAW OFFICE LLC, Attn: CHRIS FORSYTH ESQ, (For Claimant)           HALL & EVANS LLC, Attn: DOUGLAS J KOTAREK ESQ, C/O: KENDRA G GARSTKA ESQ, (For Respondents)          ORDER          The claimant seeks review of approximately sixteen orders of Administrative Law Judges (ALJ) Cannici and Jones, and Prehearing Administrative Law Judge (PALJ) Martinez Tenreiro, mailed on July 5, 2019, January 7, 8, 23, 31, March 2, 3, 4 6, 12, 17 24, and 25, 2020, that ruled in regard to a variety of pleading and discovery disputes. The March 17, 2020, order of ALJ Cannici granted the respondents’ motion for summary judgment and denied the claimant’s request to reopen the claimant’s claim, for additional temporary and permanent disability benefits and to assess penalties against the employer, the insurance carrier and Dr. Macaulay.[1]          After review of the record transmitted to us by the Office of Administrative Courts (OAC), pursuant to § 8-43-301(9) C.R.S. we remand that portion of the appeal pertinent to the striking of a hearing scheduled for April 22, 2020, to the OAC, and direct the ALJ and the OAC to provide, or to reconstruct with the assistance of the parties, the pleadings and orders filed in that matter and then to submit that record to us for review. Pursuant to § 8-43-318, C.R.S., we retain jurisdiction to ensure compliance with the remand and for further review once the record is resubmitted.          Section 8-43-301(2), C.R.S., requires that any party dissatisfied with an order of the director is to file a petition to review with the division of workers’ compensation. The petition to review before us was not filed with the division, but only with the OAC.[2]Accordingly, we may not review the orders of PALJs in this matter, but will limit review to the orders of ALJs with the OAC.          While the record submitted does not include every document referenced by the parties in their briefs, after a thorough review, we note no dispute among the parties as to the filing and dating of any pleadings or orders nor is there a dispute as to their contents. The briefs of the parties are also thorough in their description and positions of the parties as submitted both to us and to the ALJs involved. We conclude the record is sufficient to allow for review of ALJ Cannici’s March 17, 2020, grant of summary judgment. In that regard, we reverse the ALJ’s order insofar as it applies to Dr. Macaulay and otherwise affirm the order.          I.          The claimant sustained an admitted injury to his back on February 15, 2012. The claimant was placed at maximum medical improvement (MMI) on July 15, 2015, by a Division sponsored Independent Medical Examination (DIME) physician and assigned a 17% permanent impairment rating. The respondents filed a Final Admission of Liability adopting the impairment rating on September 8, 2015, and admitted for maintenance medical benefits after MMI. The claimant did not dispute the findings of the DIME physician but requested a hearing pertinent to the issue of permanent total disability benefits. Following a hearing in May and July 2016, ALJ Nemechek issued an order on March 5, 2017, denying the request for permanent total benefits. The ALJ’s order was affirmed on appeal to the Industrial Claim Appeals Office on August 22, 2017. That order was appealed to the Court of Appeals and was affirmed on September 20, 2018. The Supreme Court denied certiorari on January 7, 2019. The claim thereupon closed.          On April 4, 2019, the claimant filed a Petition to Reopen for the reason of fraud. The claimant also submitted an application for hearing on that date requesting penalties, additional temporary and permanent partial disability benefits, and medical benefits. The claimant asserted a request for penalties against the respondent employer, the insurance carrier, and against Dr. Macaulay. The claimant listed 65 allegations of penalties occurring between the dates of March 5, 1998, and June 27, 2012. Claimant asserted violations of § 8-43-203(3)(b)(IV) C.R.S., for violating the claimant’s right to refuse to have a nurse case manager present at the claimant’s medical appointments, of §8-47-203(1) against Dr. Macaulay for unnecessarily allowing nurse case managers to see the claimant’s medical file, and § 8-42-101(3.6)(p)(II) for forcing the claimant into case management without offering case management. The claimant requested penalties pursuant to § 8-43-304(1). The claimant asserted he first became aware of the facts giving rise to the penalties on April 5, 2018, when the supervisor of the Denver Water clinic stated in a hearing involving another worker’s claim for workers’ compensation benefits that the staff at the Denver Water in-house clinic, where the claimant had been treated for two months in 2012, were nurse case managers and that status had never been disclosed to the injured workers.          The date for a hearing on the claimant’s application was set and then postponed to February 3, 2020, due to discovery disputes. On January 3, 2020, the respondents submitted a Motion for Summary Judgment. The Motion asked that the claimant’s application for hearing be stricken and his requests for penalties and benefits be denied. Among the several bases for the Motion, the respondents maintained the statute of limitations for reopening set forth in § 8-43-303(1) and (2) had run prior to the claimant’s request to reopen in April 2019. Without an open claim, the respondents asserted the claimant was barred from requesting penalties or additional benefits previously closed by the 2015 Final Admission of Liability. On March 17, 2020, ALJ Cannici granted the Motion for Summary Judgment finding the period of limitations for reopening had indeed run prior to the claimant’s request to reopen. The ALJ rejected the claimant’s contention that the limitations period was subject to equitable tolling and therefore should not prohibit reopening. The ALJ thereby denied the petition to reopen and dismissed the application for hearing.          On appeal the claimant contends the granting of summary judgment represents error for a variety of reasons. The claimant asserts the ALJ did not have authority to rule on a motion when no hearing was pending. It is argued the ALJ had presided over previous hearings involving the same employer and that involved similar issues. The claimant maintains the ALJ is both a witness to the challenged conduct of the employer and is biased as indicated by his rulings in those cases. It is asserted the respondents did not endorse as an issue for hearing the statute of limitations in its original response to the application for hearing and has therefore waived the defense. It is argued the statute of limitations was subject to equitable tolling. The claimant states it is not necessary to have an open claim in order to pursue penalties. We find no error.          II.          The claimant asserts an ALJ is only provided authority by § 8-43-207(1) to act “In connection with hearings.” A hearing on the issues included in the claimant’s application for hearing was...

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